State ex rel. Cole v. City of Hendersonville

Mr. Justice Creson delivered the opinion of the Court. Appellants, City of Hendersonville, et al., appeal to this Court from a decree of the Chancery Court of Sumner County, which overruled motions to dissolve a temporary injunction and to dismiss an original bill in the nature of quo warranto filed in the name of the State on relation of W. J. Cole. In October, 1967, thirty-nine voters and residents of an area, described as the City of Hendersonville, petitioned the Election Commission of Sumner County to hold an election to decide whether the area would be incorporated under the provisions of T.C.A. sec. 6-1801 et seq. The area so sought to be incorporated comprises eighteen one-hundreds of a square mile, and lies along — 367 — U.S. Highway 31-E, near Old Hickory Lake, between the cities of Nashville and Gallatin, Tennessee. The area has a population of 251, of which sixty-two were registered voters at the time of filing of the election petition. The election to decide the question of incorporation was held June 11, 1968. Fifty-three residents voted for incorporation, and twenty-six residents voted against it. On July 9, 1968, in a second ballot, L. W. Oliver, Sr., W. E. Sisco and L. H. Newman were elected Commissioners of the City of Hendersonville. The bill in the nature of quo warranto, filed July 18, 1968, attacked the legality of the incorporation of Hen-dersonville. The bill averred (1) that the area, incorporated was merely a tiny portion of a large unincorporated and densely populated area generally known as “Hender-sonville,” (2) that the area so incorporated is not distinct from the larger “Hendersonville” area, nor set off from it “by natural * * * economic or social boundaries,” and (3) that the incorporation of the area was not within the “meaning, intent or authority of Chapter 18 of Tennessee Code Annotated.” As noted above, appellants moved to dissolve a temporary injunction granted, and to dismiss the cause. The Chancellor overruled the motions and granted an appeal. In a memorandum opinion, the Chancellor found the intent of the Legislature in enacting T.C.A. sec. 6-1801 et seq. to be the providing of an orderly and peaceful solution to the complicated problems of thickly populated but unincorporated areas; and that incorporation of a small portion of a thickly populated area does not conform to the legislative intent. — 368 — Appellants have filed twelve assignments of error, which were grouped into three classifications in appellants ’ brief and in arguments before this Court. These three argument divisions present the propositions (1) that the Chancellor erred in holding that the original bill filed by the appellees alleged facts which would render the election for incorporation void and justified a holding of the invalidity of the election for incorporation of June 11,1968; (2) that the Chancellor erred in holding that the physical size of the area sought to be incorporated was too small, and that a larger territory should have been included, and (3) that the Chancellor erred “in construing the validity of the petition for incorporation # * # on the basis of anticipated fears of possible consequences to a larger community not encompassed within the territory” proposed to be incorporated. The averments of the original bill, the memorandum opinion of the trial court, and the assignments of error reflect that this case turns upon solution of the question whether or not the physical size of the area sought to be incorporated is so small as to be in nonconformity with the intent of the statute authorizing incorporation as expressed by its terms. "While the memorandum opinion of the Chancellor reflects considerable research and mature reflection, we are constrained to disagree in some essentials. Those sections of Chapter 18 of Title 6, under which incorporation was sought, provide as follows: “6-1803. Right to adopt city-manager form — Incorporation within specified distances from eocisting municipalities. — The residents of any incorporated municipality or of any territory which it is desired to — 369 — incorporate shall have the right to adopt the provisions of chapters 18 to 23, inclusive, of this title in manner herein provided; and thereupon such city or territory shall be and become incorporated and be governed as herein set forth. No unincorporated territory shall be incorporated under the provisions of chapters 18 to 23, inclusive, of this title unless such territory contains not less than two hundred (200) persons, who shall be actual residents of the territory, and shall also contain real estate included in said territory worth not less than five thousand dollars ($5,000). Provided, however, that if any part of unincorporated territory proposed for incorporation is within five (5) miles of an existing city of one hundred thousand (100,000) or more in population or within two (2) miles of an existing city of five thousand (5,000) and less than one hundred thousand (100,000) in population, according to the latest census used for distributing state-shared taxes, then action on the petition as provided in secs. 6-1804, 6-1805 shall be held in abeyance for fifteen (15) months from the date of filing the petition; if within this period such existing city does not annex at least twenty per cent (20%) of the land area or thirty-five per cent (35%) of the population of such territory proposed for incorporation, then proceedings shall be continued as provided in secs. 6-1804, 6-1805 as though the petition had been filed at the conclusion of such fifteen (15) month period; if such existing city annexes at least said part of such territory within this period, then the petition shall be null and void and of no effect whatsoever.” “6-1804. Election to adopt city manager form. — An election for the purpose of determining whether or not — 370 — chapters 18 to 23, inclusive, of this title shall become effective for any city shall be called by the county commissioners of elections of the county, upon the request or petition in writing of twenty per cent (20%) of the legal voters of such city or territory, voting at the last general election, which petition shall state therein the proposed corporate name and shall designate therein in a sufficient manner the boundaries of the proposed municipal corporation, which may be done by a general reference to the boundaries then existing if there be one. * * *” Close scrutiny of Chapters 18 to 23 of Title 6 reveals that the Legislature was concerned with the form and function of the municipal government to be created and with the requisites for incorporation of unincorporated territories. T.C.A. sec. 6-1803 permits any incorporated municipality or unincorporated territory to adopt these provisions; however, a number of restrictions are imposed in the case of an unincorporated territory. Incorporation is not authorized unless the territory to be incorporated contains not less than two hundred persons and real estate worth not less than $5,000. Further, where the two foregoing restrictions are met, T.C.A. sec. 6-1803 provides for a delay of fifteen months from the filing of the election petition provided for in T.C.A. sec. 6-1804, where the territory to be incorporated is within five miles of an existing city of a population of 100,000 or more, or within two miles of an existing city having a population between 5,000 and 100,000. It thus seems plain that the Legislature considered the problem of a number of comparatively minute municipalities within a larger densely populated area having at least many common interests and concerns. However, it — 371 — is not to be presumed that such awareness on the part of the Legislature overrides express provisions of the statute as enacted. The facts of this case appearing in the record and set out above show that incorporation of the City of Hender-sonville was undertaken with meticulous regard for the requirements of T.C.A. secs. 6-1803 and 6-1804. The percentage of voters of the area to be incorporated petitioning for election, the population of the area, and the value of the property in the area in the instant case all met the requirements established by the Legislature for incorporation. It is quite clear that the Legislature has not established a condition as to the physical size of a territory to be incorporated. Parenthetically, it must be noted that legislative establishment of low minimal limit of (1) population, and (2) property values, leads only to the conclusion that small areas were a part of legislative contemplation. This consideration, when examined in connection with the statutorily imposed delay where proximity to an already existing municipality is a factor, supports the view that the Legislature foresaw incorporation of geographically small cities and acted to retard their creation where such tiny municipalities might impede the orderly development of larger pre-existing municipalities. Those portions of T.C.A. sec. 6-1803 which provide for abatement of action on the election petition manifest legislative awareness of the problems just above mentioned and noted by the trial court in its memorandum opinion. It is the insistence of the appellees that the area sought to be incorporated is territorially too small, and that — 372 — incorporation of suck minute areas is not within the “meaning, intent or authority” of T.C.A. sec. 6-1801 et seq. The trial court, after extended consideration of T.C.A. secs 6-1801 et seq. has agreed with this insistence. The foregoing discussion of the facts of this case as they appear in the instant record, and the statutes here involved, indicate that the present proposed incorporation does conform to the express language of the Legislature. While the language of these statutes exhibits legislative awareness of the problems created when relatively small communities in the general area of larger unincorporated communities seek incorporation, there is no manifestation of an intent to prohibit incorporation of small communities for that reason alone. If the criticism of the appellees can boast any validity, the fault they find is the failure of the legislation to fix any requirement as to size other than (1) population, and (2) property values. Courts do not exercise arbitrary powers in construing statutes or constitutions. Henley v. State (1897), 98 Tenn. 665, 41 S.W. 352, 1104, 39 L.R.A. 126. It becomes apparent that the basic thrust of what is said by the learned Chancellor below and argued here by the appellees is precisely that which the discussion by Mr. Justice Wilkes so ably elucidates, as follows: “With the wisdom, propriety, desirability, and policy of the act, this court can have nothing to do. These are matters which appeal to the intelligence, patriotism, and discretion of the general assembly, and upon that department of the government rests the responsibility for the wisdom and sound public policy of the law. That body is composed of representatives fresh from and — 373 — charged by the people with the duty of providing such legislation as will correct the abuses of the body politic, and at the same time provide wise measures for the benefit of the state. These representatives are, or should be, in touch with the people; should know their wishes, their burdens, their plans for relief; and this, Court in passing upon an act designed to affect the whole people, and to correct what is said to be a great public evil, can question the act only so far as it touches the fundamental law, and measure it by the provisions of that law, and determine whether it has in any particular passed the limits placed upon the power and discretion of the legislature by the constitution. Mr. Cooley, in his work on Constitutional Limitations, says: ‘Except when the constitution has imposed limits on the legislative power, it must be considered as practically absolute, whether it act according to natural justice or not, in any particular case. The courts are not the guardians of the rights of the people of the state except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation within constitutional bounds is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil, but Courts cannot assume these rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the law-making power. Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced unless restrictions upon the — 374 — legislative authority can be pointed out in the constitution, and the case shown to come within them. The moment a court ventures to substitute its own judgment for that of the legislature in any case where the constitution has vested the legislature with power over the subject, that moment it enters upon a field where it is impossible to set limits to its authority, and where its discretion alone will measure the extent of its interference/ Cooley, Const.Lim. (6th Ed.), 200, 201. Our own decisions are thoroughly in accord with this view: McGinnis v. State, 9 Humph., [43] 47; Washington v. Mayor, etc., 1 Swan, 177, 180; Davis v. State, 3 Lea, [376] 378; Ballentine v. Mayor, etc. [of Town of Pulaski], 15 Lea, [633] 634; Lynn v. Polk, 8 Lea, [121] 229; Peck v. State, [2 Pick., 262], 86 Tenn. 262, 6 S.W. 389; Williams v. Nashville, [5 Pick., 488], 89 Tenn., [487] 488, 15 S.W. 364; Cole Manufacturing Co. v. Falls, [6 Pick., 481], 90 Tenn. 466, 16 S.W. 1045; Sutton v. State, 12 Pick., 698, 96 Tenn. 696, 36 S.W. 697, 33 L.R.A 589. It is the settled rule in Tennessee and in the United States generally, that the legislature has unlimited power to act in its own sphere of legislation, except so far as restrained by the constitution of the United States and the constitution of the state. Bell v. Bank, Peck., 269; Hope v. Deaderick, 8 Humph. [1] 8; Davis v. State, 3 Lea, [376] 377; Stratton Claimants v. Morris Claimants, [5 Pick., 497], 89 Tenn. 497, 15 S.W. 87 [12 L.R.A. 70]; 3 Am. & Eng. Enc. Law, 689. If the act, therefore, does not violate some provision of the constitution, this court' has no jurisdiction or power to lay hands upon it, and arrest its execution, — 375 — whether its provisions are wise or unwise, whether its operation be hurtful or beneficial. If, in the opinion of this court, however, it does in any material respect violate the fundamental law of the land, it is the duty of this court to so declare and prevent its enforcement. This court does not exercise arbitrary powers in construing either statutes or constitutions. * * *” If the appellees here are in anywise aggrieved, it is not by reason of the action of this Court, but rather' by that of the Legislature. It results that that the judgment below is reversed and the cause dismissed. Costs are taxed to the appellees. BurNett, Chief Justice, and ChattiN, Justice!, concur. Dyer and Humphreys, Justices, dissenting.